Week in Review

IN THE NEWS

• The U.S. District Court for the Northern District of California ruled that the practice of adding fluoride to drinking water violates the  Toxic Substances Control Act. The court found that the practice presents an unreasonable risk of harm to children’s developing brains. Judge Chen stated in the opinion that “the scientific literature in the record provides a high level of certainty that a hazard is present” and that “fluoride is associated with reduced IQ.” Even though the practice of adding fluoride to water is voluntary, about 75 percent of Americans drink fluoridated water in their communities.
• The U.S. Department of Justice filed an antitrust lawsuit against Visa, accusing the company of illegally using its “size, scale, and centrality” to monopolize the debit card market. According to the complaint, more than 60 percent of debit card activity in the United States occurs on Visa’s debit network. The Justice Department alleges that Visa leveraged this dominant position to insulate itself from competition—resulting in “significant additional fees imposed on American consumers and businesses and slowed innovation in the debit payment ecosystem.” 
• The U.S. Securities and Exchange Commission (SEC) ordered 11 financial firms to pay over $88 million in fines for “widespread recordkeeping failures.” These firms failed to maintain required communications, hampering the SEC’s ability to conduct investigations. The violations included use of unapproved communication methods—known as off-channel communications—by senior personnel and supervisory staff. In issuing these “robust” penalties, the SEC highlighted that when firms self-report and correct their recordkeeping failures, they may receive lower penalties or no penalties at all.
• The U.S. Food and Drug Administration (FDA) approved a new drug that reduces the symptoms of the rare and fatal genetic disorder Niemann-Pick Disease Type C, sometimes referred to as “childhood Alzheimer’s disease” that attacks the nervous system and vital organs leading to physical and mental disabilities. Individuals diagnosed with this disease typically live for about 13 years. The drugmaker has not disclosed the price of this drug, but a rival company lists the cost of its treatment—that was approved just days prior—at up to 106,000 dollars per month. These drugs are the first two FDA-approved treatments for the disease.
• The U.S. District Court for the District of North Dakota granted a preliminary injunction against the Equal Employment Opportunity Commission (EEOC), ruling that the agency cannot compel Catholic employers to provide accommodations for employees seeking or recovering from abortions and in-vitro fertilization treatments. Citing religious freedom concerns, the court’s order prevents the EEOC from enforcing its guidance under the Pregnant Workers Fairness Act (PWFA) against the Roman Catholic Diocese of Bismarck and the Catholic Benefits Association. This injunction comes in the wake of an order from the U.S. District Court for the Western District of Louisiana earlier this year that blocked the EEOC from enforcing the same provisions of the PWFA in the states of Louisiana and Mississippi, as well as the four Catholic employers named as plaintiffs. 

WHAT WE’RE READING THIS WEEK

•  In a recent Brookings Institution article, Chiraag Bains, a nonresident senior fellow at the Institute, discussed the usefulness of disparate impact law as protection against algorithmic discrimination by artificial intelligence (AI) models. The author explained that discrimination protection comes in two forms: prohibitions on disparate treatment and prohibitions on disparate impact. The latter prohibition focuses on outcomes resulting from unintentional discrimination through facially neutral practices. Disparate impact liability allows algorithmic discrimination in AI to be addressed even when the technology is trained with the intent to be equitable. Bains concluded by emphasizing that the current state of discrimination law does not account for AI’s complexity and encouraged Congress and federal agencies to devote more resources to research and enforcement concerning AI and discrimination. 
•  In an article in the Northwestern University Law Review, Amanda Shanor and Sarah E. Light, assistant professor and professor at the Wharton School of the University of Pennsylvania, respectively, explored the rise of “anti-woke capitalism” laws and their regulatory implications. According to Shanor and Light, anti-woke capitalism laws are state laws that target private firms’ decisions related to contested social issues such as “racial justice, abortion, and LGBTQ+ rights.” Shanor and Light analyzed the rise of new anti-woke laws that sanction financial institutions that incorporate environmental, social, and governance factors, such as reducing the risks posed by climate change, into their decision-making. Shanor and Light argued that these laws mark a “shift in conservative legal thought away from libertarianism and toward identitarianism,” which they define as “advocating that law should protect and advance a single cultural identity to the exclusion of other identities, other values, or pluralism.”

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Richard J. Pierce Jr., the Lyle T. Alverson Professor of Law at George Washington University Law School, discussed then-forthcoming new guidelines from federal antitrust regulators addressing when proposed mergers and acquisitions “will lessen competition.” Pierce highlighted that, under two recent Supreme Court decisions, courts would review the guidelines “pre-enforcement” even though they were non-binding guidance documents rather than “legally binding” regulations. Pierce predicted that courts would not defer to the guidelines’ interpretation of federal law as a result of the Court’s new major questions doctrine, which requires clear “evidence” that Congress “authorized” “unprecedented” agency “action that has substantial economic or political effects.”